This version of the Buyer Agreement was implemented and became effective on July 20, 2013 (“Effective Date”). It applies from the later of that date and the date on which you accepted it through the Site.
CustomMade has created an online marketplace to connect makers of custom goods and providers of custom services (“Makers” and, together with you and other buyers or potential buyers, “Users”), with users who wish to shop for and purchase custom goods and services. On and through the Site, you and others may post open requests to invite bids or proposals from Makers for custom goods or services (“Project Requests”). Makers may post information about their skills and past projects in their profiles and submit bids or proposals in response to Project Requests (“Project Proposals”). Once a bid or proposal is accepted, you and Makers can communicate with each other to form an agreement whereby a Maker will create and deliver a custom good or service (a “Project”) to you (a “Project Agreement”). CustomMade makes no guaranty, representation, or assurance that a Project Agreement will be legally enforceable if challenged.
Prior to your entering into a given Project Agreement, CustomMade shall have the right (but in no event any obligation) to reject any Project Agreement by notifying the parties thereto that they may not enter into the proposed Project Agreement
The Site is available only to legal entities or persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. If you are a person who agrees to this Agreement on behalf of a company or other legal entity, the terms “Buyer,” “you,” and “your” refer both to you personally and the entity on whose behalf you agree. Furthermore, you personally represent and warrant that you have the authority to bind that entity to this Agreement.
Nothing in this Agreement precludes you from engaging with CustomMade or the Site as a Maker, as long as you open a separate account designated for Makers and agree to the terms of the separate agreement applicable to Makers (the “Maker Agreement”).
CustomMade shall at all times have the right, in its sole discretion, to suspend or cancel a User’s account or access to the Site, or to otherwise preclude a User from using the Site or the CustomMade services, for any reason or no reason. If your account is suspended, restricted, or cancelled, you may not continue to use the CustomMade service or Site under a different or new account.
You agree that when you accept a Project Proposal made to you by another User of the Site, you are agreeing and intending to enter into a binding legal agreement with that User. That binding agreement shall be between only you and that other User. CustomMade shall not be a party to any agreement between you and another User. You understand and agree that CustomMade does not deliver any goods or provide services for or on behalf of any User, does not ensure payment by any User, and does not make any representations regarding the quality of such goods or services, except as otherwise expressly set forth in this Agreement.
Buyer acknowledges, agrees and understands that: (i) the Site is merely a venue for introducing and facilitating agreements between Users; (ii) CustomMade is not a party to any Project Agreements between Users; (iii) no User, including you, is an employee, agent, or representative of CustomMade; (iv) CustomMade is not an employee, agent, or representative of any User, including you; (v) CustomMade does not, in any way, supervise, direct, or control any User’s work; (vi) CustomMade shall not have any liability or obligations under or related to Project Agreements or for any acts or omissions by any User; (vii) CustomMade has no control over Users; and (viii) CustomMade makes no representations as to (a) the reliability, capability, honesty, qualifications, or other characteristics of any User or any User’s statements or conduct; or (b) the quality, safety, or legality of any Project delivered by a Maker.
All content included in the Site, including but not limited to text, graphics, video, interfaces, logos, button icons, images, data compilations, software, and the compilation thereof is the property of CustomMade or its content and software suppliers and is protected by United States and international laws. Unauthorized use of such intellectual property or information, or the Site, is prohibited. Except as expressly provided herein, CustomMade does not grant any express or implied right or license of any kind to you concerning any patents, copyrights, trademarks, trade secrets, or other intellectual property rights.
CustomMade grants you a limited, revocable, nonexclusive, nontransferable license to view, store, bookmark, download and print the pages within the Site solely for your personal, informational, and noncommercial use. Individual pages and sections of the Site may be printed for personal or internal use only, provided that such print outs retain all applicable copyright or other proprietary notices. CustomMade reserves all rights not expressly granted in this Agreement.
In addition, you agree:
CustomMade may terminate your account if you infringe the copyright or other intellectual property rights of others.
As part of a transaction or Project Agreement, Buyer may obtain personal information, including email address and shipping information, from a Maker. Without obtaining prior permission from the Maker, such personal information shall be used only to facilitate that transaction or Project Agreement.
CustomMade has not granted Buyer a license to use information or CustomMade intellectual property for unsolicited commercial messages. Without limiting the foregoing, without express consent from the other User, Buyer is not licensed to use any other User’s email or physical mailing address.
CustomMade expects a consistent and high level of courtesy, respect and professionalism from all of its Users toward each other and reserves the right to expel or suspend any User at any time for any reason, in CustomMade’s sole discretion.
When Buyer accepts a proposal from another User that results in a Project Agreement, Buyer agrees and intends that by doing so, Buyer is entering into a binding agreement directly with that User, which Buyer will honor. CustomMade is not a party to any Project Agreement or other agreements between or among Users. Buyer understands and agrees that the Maker with which Buyer enters into a Project Agreement, not CustomMade, will be the merchant of record for all transactions through the Site.
Buyer shall not enter into any Project Agreement with terms that would cause Buyer to violate any of the provisions of this Agreement.
Buyer agrees to promptly deliver payment to the Maker in accordance with the terms of any Project Agreement unless the Maker fails to meet the material terms of the Project Agreement.
Buyer agrees to use good judgment when posting information, comments, feedback or other content regarding other Users, CustomMade, or any third party anywhere within the Site. User may be held legally responsible for damages suffered by other Users, CustomMade or any third party as a result of legally actionable or defamatory comments, remarks or other information or content posted to the Site.
Buyer shall not post to the Site or include in any communications with another User, information that is libelous, defamatory, obscene, abusive, pornographic, threatening, inaccurate, or an invasion of privacy; an infringement of another’s intellectual property rights, including, but not limited to, copyrights and trademarks; illegal in any way or that advocates illegal activity under any applicable law; an advertisement or solicitation of funds, goods, or services, other than for the purpose of conducting business with other Users pursuant to the purpose of the Site as stated in Section 2; an impersonation of another; or personal information of another, including but not limited to personal phone numbers, account numbers, personal addresses, or employer references.
Buyer agrees that CustomMade is not and shall not be legally responsible for any remarks, information, or other content posted or made available on the Site by any other User or third party, even if such information or content is defamatory or otherwise legally actionable. CustomMade is not responsible for and does not monitor or censor content for accuracy. CustomMade reserves the right, however, to remove or restrict access to any information or content posted or made available on the Site if ordered to do so by a court, if CustomMade considers such information or content to be inappropriate, or for any other reason, in its sole discretion.
All identity information associated with the Buyer and Buyer’s account on the Site must be real and verifiable. Buyer shall at all times ensure that the information associated with the Buyer’s account is accurate and updated. CustomMade may validate Buyer information at any time. Buyer shall reasonably cooperate with any such verification efforts, including but not limited to providing to CustomMade upon request government or legal documents that confirm the Buyer’s identity.
Buyer is solely responsible for ensuring and maintaining the secrecy and security of Buyer’s account information and password. Buyer agrees not to disclose Buyer’s password to, or allow the use of Buyer’s account by, any third party. Buyer agrees that Buyer shall be solely responsible for any use of the Buyer’s account or Buyer’s password, whether or not Buyer authorizes such use.
Buyer authorizes CustomMade to run credit card authorizations on any credit cards provided by Buyer. Buyer may terminate CustomMade membership and disable the Buyer’s account at any time. Buyer shall, however, remain bound by the terms of this Agreement even if Buyer disables Buyer’s account.
All written communications relating to Projects, transactions, or potential transactions between Buyer and any other User must be conducted through the Site. All such communications must be in English and may not contain any requests to circumvent the Site.
Buyer shall immediately notify CustomMade if another User communicates in writing with Buyer other than through the Site.
When engaged in communications concerning Projects, transactions, or potential transactions with other Users, Buyer shall regularly review and respond promptly to communications from such Users.
Project Requests must be of a professional nature and accurately describe the good or service requested. They should be free of offensive language or advertisements for other products or services. Project Requests may not request any good or service that is illegal or the provision of which would infringe upon any third party’s intellectual property or other rights.
Disintermediation, as used in this Agreement, means Buyer’s conducting outside of the Site or through any channels other than those provided or specified by CustomMade any transaction with another User to whom Buyer was introduced through or as a result of Buyer’s use of the Site. Buyer shall not engage in Disintermediation or request that another User engage in Disintermediation.
Buyer shall immediately notify CustomMade if another User requests that Buyer engage in Disintermediation.
Buyer agrees that for all Projects for which Buyer is required to make payment to another User, all payments are to be made and accepted only through a payment mechanism provided or approved by CustomMade (an “Approved Payment Mechanism”). Buyer shall immediately notify CustomMade if another User requests that Buyer make a payment by any method other than an Approved Payment Mechanism.
Buyer shall, at Buyer’s own expense, take all steps necessary to enable Buyer to make payments through at least one Approved Payment Mechanism, including but not limited to, as applicable, acquiring necessary computer equipment and software, establishing an account with a third-party payment processor, and providing credit card and bank account information.
To the extent an Approved Payment Mechanism involves the use of a CustomMade-approved third-party payment processor (“Payment Processor”), CustomMade may make available, for the convenience of Users, the ability to communicate with and make payments using the Payment Processor through Site. Buyer understands and agrees to the following with respect to any Approved Payment Mechanism, whether or not it involves a Payment Processor, and whether or not CustomMade provides a User with the ability to access or use a Payment Processor’s services through the Site: (a) CustomMade does not oversee or control the receipt or transfer of payments; (b) CustomMade shall have no responsibility or liability for any losses or damages relating to or arising out of the receipt or transmission of payments, including but not limited to losses or damages from misdirected or lost payments, breaches of security, chargebacks, fraud, theft of funds, violations of banking, money-laundering, privacy, or any other laws relating to or arising out of the use of an Approved Payment Mechanism; (c) Buyer shall comply with all terms and conditions imposed by any Payment Processor; (d) Buyer shall be responsible for and shall pay any fees charged to Buyer by a Payment Processor, credit card network, bank, or other financial institution, or otherwise imposed on Buyer as a result of payments made or received through an Approved Payment Mechanism; and (e) Buyer consents to CustomMade or the Payment Processor deducting from any payment made by Buyer, and paying to CustomMade, amounts that are due from Buyer to CustomMade, or delaying the transfer of funds when amounts are due from Maker, whether such amounts are the result of the Project for which the payment is received or otherwise. Nothing herein is intended to limit any rights you may have against a Payment Processor.
Buyer understands and agrees that CustomMade charges a transaction-based fee for CustomMade’s services and technology provided through the Site and otherwise (the “Service Fee”). The Service Fee is charged to any Maker with which Buyer enters into a Project Agreement. For each Project Agreement, the CustomMade Service Fee is 10% of the total price billed for the Project, excluding taxes and shipping or delivery costs.
The Service Fee shall not exceed one thousand dollars ($1,000) per Project.
For each Project, the Service Fee shall be due immediately upon Buyer’s first payment pursuant to the Project Agreement, although CustomMade may, at its sole discretion, opt to defer all or a portion of the Service Fee for a given Project until Buyer makes final payment for that Project.
CustomMade shall have the right to collect the CustomMade Service Fee directly from the funds that Buyer provides to the Maker through an Approved Payment Mechanism.
From time to time, CustomMade may, at its sole discretion, choose to offer Makers discounts on the Service Fee or a credit towards the Service Fee. Unless CustomMade states in writing otherwise, all Service Fees are final and nonrefundable.
If Buyer becomes responsible under this Agreement to make any payments to CustomMade and fails to pay such amounts when due, Buyer shall be responsible to CustomMade for all amounts due, plus any applicable processing fees, charges or penalties, collection costs (including but not limited to attorneys’ fees), and interest on the unpaid amount at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law. In its discretion, and without limiting its other available remedies, CustomMade may setoff amounts due from Buyer against amounts received from or held for Buyer, and may make appropriate reports to credit reporting agencies.
Without limiting the generality of the foregoing or the availability of other remedies, in the event that Buyer fails to make any payment to CustomMade when due, Buyer consents to (a) CustomMade directing any Payment Processor to withhold payments, or any portion thereof, otherwise due to Buyer, and to pay withheld amounts to CustomMade to setoff, in whole or in part, amounts owed to CustomMade; (b) Payment Processor complying with such direction; and (c) CustomMade or Payment Processor charging any Buyer credit cards, bank accounts, or other payment methods or sources available to CustomMade amounts due from Buyer.
CustomMade provides its feedback and reputation management system as a service to Buyer and other Users, through which Users can express their opinions and experiences publicly about other Users. CustomMade does not monitor or censor these statements, or investigate any remarks posted by Users for accuracy. Buyer acknowledges and agrees that the Site may contain publicly available comments and feedback about Buyer from other Users with whom Buyer has transacted or interacted through and in connection with the Site. Buyer acknowledges that feedback results for Buyer may consist of comments and ratings left by other Users that are or that Buyer perceives as negative. Buyer also acknowledges and agrees that CustomMade may (but shall have no obligation to) calculate composite feedback numbers, scores, or other ratings based on User feedback. Buyer acknowledges and agrees that in no event shall CustomMade be responsible or liable for, and Buyer releases CustomMade and holds CustomMade harmless from, any claims that Buyer might have as a result of any other User’s comments or feedback about Buyer, or any scores, numbers, ratings or other data or information derived from User comments or feedback, even if that information is defamatory or otherwise legally actionable.
Buyer understands and agrees that Buyer may be held legally responsible to other Users, CustomMade, or third parties as a result of comments or feedback that Buyer submits to the Site. Any effort to falsify feedback, or to manipulate or coerce another User by threatening negative feedback or offering to sell or buy goods or services in exchange for feedback is in violation of this Agreement, and may expose Buyer to liability. Other actions that constitute an abuse of the reputation management system and a violation of this Agreement include, but are not limited to, submitting to the feedback system links, profanity, or inappropriate content, and contacting Users to provide direct feedback about other Users with whom Buyer has interacted, whether or not that feedback is negative.
CustomMade shall at all times have the right, in its sole discretion, to maintain, modify, or delete statements, feedback, comments, or ratings, although shall have no obligation to do so.
CustomMade shall at all times have the right, in its sole discretion, to determine how search algorithms through the Site will function, including but not limited to determining the manner in which Makers and Makers’ portfolios rank and are listed in response to User searches, and which Project Requests Makers are able to view or respond to.
You may be eligible to participate in the CustomMade Guarantee Program. Subject to the terms, limitations and conditions that are set forth in this Section 15 (all references herein to this Section 15 include its sub-sections), the CustomMade Guarantee Program applies to Projects that are transacted through the Site and that otherwise qualify under the terms of this Section 15 (“Covered Projects”).
The CustomMade Guarantee Program provides certain benefits to a User when (1) a Project is, or a User claims that a Project is, delivered in a form that materially differs from the requirements of the Project Agreement; or (2) a Maker fails, or User claims that a Maker has failed, to deliver a Project (together, “Covered Issues”). In the event that CustomMade determines, following the conduct of the Dispute Resolution Program defined below, that you have suffered a loss as a result of a Covered Issue involving a Covered Project, and if the Maker involved has not delivered the Project or a replacement Project in a form that complies with the requirements of the Project Agreement, CustomMade will pay to you the lesser of the total price for the Project reflected in the Project Agreement (including taxes and delivery or shipping charges), or $5,000. Without modifying the foregoing, but for the avoidance of doubt, in no event shall CustomMade be responsible for your failure to pay a Maker for a Project or for any harm or damage that a Project causes. CustomMade’s determination as to whether there has been a loss as a result of a Covered Issue involving a Covered Project shall be final and binding.
Nothing in the CustomMade Guarantee Program shall require CustomMade to make any payments as a result of fraud or theft by or against any User. Users shall, however, submit any allegations of fraud or theft to the Dispute Resolution Program.
You are eligible to initiate a claim under and to participate in the CustomMade Guarantee Program with respect to a Project if you and the Project otherwise satisfy the requirements of this Section 15 and if all the following conditions are met:
The CustomMade Guarantee Program is not a product warranty or a solution for buyer’s remorse. The CustomMade Guarantee Program does not apply where the User initiating the claim has been or may be compensated by a third party. CustomMade reserves the right, in its sole discretion, to determine whether a Project qualifies as a Covered Project.
As part of the CustomMade Guarantee Program, CustomMade will host a dispute resolution process (the “Dispute Resolution Program”). All disputes between you and any other User arising out of or relating to a Covered Issue or a claim of fraud or theft shall be submitted to the Dispute Resolution Program. To initiate the Dispute Resolution Program, you must be involved in a dispute with another User concerning a Covered Issue or allegation of fraud or theft, satisfy the eligibility requirements of Section 15, and have made a good faith attempt to resolve the dispute. In cases involving a claim that you have not timely received delivery of the Project, you shall not initiate the Dispute Resolution Program earlier than thirty (30) days after the delivery date required or anticipated by the Project Agreement.
If a Maker seeks to initiate the Dispute Resolution Program for a claim that is otherwise eligible for the Program, the Maker shall do so by completing a Request for Review form available on the Site.
After CustomMade receives the Request for Review, CustomMade will determine whether the dispute is eligible for the Dispute Resolution Program. CustomMade will notify the requesting Maker and you when CustomMade determines whether the dispute is eligible for the Dispute Resolution Program.
If CustomMade determines that a dispute is eligible for the Dispute Resolution Program, CustomMade will contact all Users involved to notify them that you (and any other User involved who did not initiate the claim) will have up to seven (7) days to respond to the Maker’s submission and any CustomMade inquiries concerning the matter. Following CustomMade’s receipt of any response, CustomMade may, in its discretion, contact you or other involved Users for further information. If CustomMade seeks further information, the party from whom information is sought will have up to seven (7) days to respond to CustomMade’s inquiry.
After no more than thirty (30) days from the date CustomMade receives all of the information it requests (or from the passage of seven (7) days without a response), CustomMade will issue a written determination of the merits of the dispute.
In the event CustomMade determines that the Maker failed to deliver the Project or delivered the Project in a form that was materially different from what the Project Agreement required, you shall have the option, upon your having returned the Project to Maker (if applicable), either to receive a replacement Project that complies with the Project Agreement or a full refund of the purchase price.
You agree that prior to and during the pendency of a proceeding under the Dispute Resolution Program, you will not initiate any credit card, bank, or other chargebacks or reversals concerning the Project.
If you seek to initiate the Dispute Resolution Program for a claim that is otherwise eligible for the Program, you will be required to do so by completing a Request for Review form available on the Site. After CustomMade receives the Request for Review, CustomMade will determine whether the dispute is eligible for the Dispute Resolution Program. CustomMade will notify you and any other Users involved when CustomMade determines whether the dispute is eligible for the Dispute Resolution Program.
If CustomMade determines that a dispute is eligible for the Dispute Resolution Program, CustomMade will contact the Maker (or other involved Users who did not initiate the claim) to notify them that they will have up to seven (7) days to respond to your submission and any CustomMade inquiries concerning the matter, and for the Maker to propose a resolution to you. Following CustomMade’s receipt of any response, you will have seven (7) days to accept or reject the proposed resolution. If you reject the proposed resolution, you will be required to make a counterproposal at the time of rejection. The Maker will have up to seven (7) days to respond to any counterproposal. At any point, CustomMade may, in its discretion, contact you or the Maker for further information. If CustomMade seeks further information, the party from whom information is sought will have up to seven (7) days to respond to CustomMade’s inquiry.
After no more than thirty (30) days from the later of the date CustomMade receives all of the information it requests (or from the passage of seven (7) days without a response) and the date that a counterproposal is rejected, CustomMade will issue a written determination of the merits of the dispute.
If the Maker’s offer in response to a claim by you includes a full refund of the purchase price for the Project (including taxes and shipping or delivery costs), and that offer resolves the dispute, CustomMade will refund any Project Fee that has been paid.
In the event CustomMade determines that the Maker failed to deliver the Project or delivered the Project in a form that was materially different from what the Project Agreement required, you shall have the option, upon your having returned the Project to Maker (if applicable), either to receive a replacement Project that complies with the Project Agreement or a full refund of the purchase price.
You agree that prior to and during the pendency of a proceeding under the Dispute Resolution Program, you will not initiate any credit card, bank, or other chargebacks concerning the Project.
If a User submits a Request for Review form that includes a claim of fraud or theft, CustomMade will determine, in its sole discretion, whether to proceed with the Dispute Resolution Program pursuant to this Section 15 or to refer the matter to any Payment Processor through which payment for the Project was made. You agree that if the matter is referred to a Payment Processor, you will work with the Payment Processor and comply with any applicable Payment Processor rules and procedures for resolving the dispute. CustomMade will not be responsible under the CustomMade Guarantee Program or otherwise for any losses due to fraud or theft, regardless of whether the matter proceeds through the Dispute Resolution Program.
You agree that for disputes to which the Dispute Resolution Program applies, you will participate in the Dispute Resolution Program, do so in good faith, and comply with its procedures.
As an additional, separate, and distinct condition to the CustomMade Guarantee Program, you agree that CustomMade, as limited guarantor, has the right to subrogate against any person or entity whatsoever who allegedly is responsible for causing the losses or damages at issue, even if that person or entity is you. Further, you hereby agree that, with respect to any payments made under the CustomMade Guarantee Program by, or on behalf of, CustomMade, you will assist in and cooperate fully with CustomMade regarding any and all subrogation efforts.
Buyer agrees that by entering into this Agreement, Buyer, for Buyer and Buyer’s predecessors, successors, and assigns (together, the “Buyer Releasors”), releases and forever discharges CustomMade and its predecessors, successors, assigns, agents, officers, directors, employees subsidiaries, parents, affiliates, attorneys, contractors, and suppliers (together, the “CustomMade Releasees”) from and against all actions, causes of action, claims, suits, debts, damages, judgments, liabilities, rights, contracts, obligations, and demands, whether now known or unknown, liquidated or unliquidated, that any of the Buyer Releasors has, may have, has asserted, or could have asserted, of any nature and relating to any subject, excluding the right of Buyer to enforce this Agreement according to its terms.
In addition, without limiting the generality of the foregoing, Buyer, for the Buyer Releasors, specifically releases and forever discharges the CustomMade Releasees from and against all actions, causes of action, claims, suits, debts, damages, judgments, liabilities, rights, contracts, obligations, and demands, whether now known or unknown, liquidated or unliquidated, that any of the Buyer Releasors has, may have, has asserted, or could have asserted, of any nature arising out of or in any way connected with any disputes Buyer may have with any other User of the Site.
In addition, Buyer agrees that each time it logs into or uses the Site, Buyer thereby reaffirms and restates the releases in the previous two paragraphs, such that Buyer is, upon each log in or use, on behalf of the Buyer Releasors, releasing and forever discharging the CustomMade Releasees from and against all actions, causes of action, claims, suits, debts, damages, judgments, liabilities, rights, contracts, obligations, and demands, whether known or unknown, liquidated or unliquidated, that any of the Buyer Releasors has, may have, has asserted, or could have asserted, of any nature and relating to any subject, through the date of such log in or use, excluding the right of Buyer to enforce this Agreement according to its terms.
Buyer agrees to be solely responsible for Buyer’s conduct and activities on and regarding the Site and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links that Buyer submits, posts, or displays on or in connection with the Site (together, “Content”). Buyer will not: (i) post false, inaccurate, misleading, obscene, or defamatory content; (ii) falsely state or otherwise misrepresent Buyer’s affiliation with any person or entity, through for example, the use of similar email addresses or names, or the creation of false account(s); (iii) infringe upon or misappropriate any person’s or entity’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy; (iv) transmit any code that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (v) modify, adapt or hack the Site or falsely imply that any other website is associated with CustomMade; or (vi) purport to create any liability for CustomMade to any third party or cause CustomMade to lose (in whole or in part) the services of CustomMade’s ISPs or other suppliers.
CUSTOMMADE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH REGARD TO CUSTOMMADE’S SERVICES, WORK PRODUCTS, CUSTOMMADE RESOURCES, THE SITE, ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT, OR BUSINESS CONDUCTED OR PURCHASES MADE WITH THE ASSISTANCE OF CUSTOMMADE, ALL OF WHICH ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMMADE DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, BUYER AGREES THAT NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY USER FROM CUSTOMMADE SHALL CREATE ANY WARRANTY OF ANY KIND NOT EXPRESSLY MADE HEREIN.
CUSTOMMADE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING OTHER USERS OR THEIR WORK, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS OR WARRANTIES CONCERNING THE SAFETY OF PROJECTS OR USERS’ CAPABILITIES, HONESTY, RELIABILITY, TRUSTWORTHINESS, OR ABILITIES TO PAY.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMMADE DOES NOT WARRANT OR REPRESENT THAT YOUR USE OF THE SITE OR INTERACTIONS WITH OTHER USERS, OR PROJECTS WILL BE SAFE. YOU UNDERSTAND AND AGREE THAT CUSTOMMADE DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES TO, OR VIRUSES OR OTHER MALWARE THAT MAY INFECT, YOUR EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE SITE. YOU FURTHER UNDERSTAND AND AGREE THAT CUSTOMMADE DOES NOT ASSUME AND EXPRESSLY DISCLAIMS, ANY RESPONSIBILITIY OR LIABILITY FOR ANY DAMAGE OR HARM THAT ANY PROJECT CAUSES TO ANY PROPERTY OR PERSON.
IN NO EVENT SHALL CUSTOMMADE, OR ITS SUBSIDIARIES, PARENTS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, CONTRACTORS, OR SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, OR INCIDENTAL, ARISING OUT OF OR RELATING TO CUSTOMMADE'S SERVICES, YOUR USE OF CUSTOMMADE’S SERVICES OR THE SITE, THE CONDUCT OF ANY USER (WHETHER TORTIOUS OR OTHERWISE) IN CONNECTION WITH THE USE OF THE SITE BY YOU OR ANY OTHER USER, CUSTOMMADE’S GUARANTEE PROGRAM (EXCEPT AS EXPRESSLY STATED IN SECTION 15), OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, OR EMOTIONAL DISTRESS. NOTHING IN THIS PARAGRAPH IS INTENDED TO ELIMINATE THE RIGHTS EXPRESSLY GIVEN TO YOU BY, AND AS LIMITED IN, SECTION 15 CONCERNING THE CUSTOMMADE GUARANTEE PROGRAM.
TO THE EXTENT CUSTOMMADE IS EVER DETERMINED TO BE LIABLE TO YOU NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT CUSTOMMADE'S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF CUSTOMMADE’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, CONTRACTORS, OR SUPPLIERS, SHALL BE LIMITED TO THE GREATER OF (A) THE AMOUNT OF PROJECT FEES PAID BY YOU, OR BY MAKERS AS A RESULT OF COMPLETED PROJECTS THAT YOU PURCHASED, TO CUSTOMMADE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, (B) $100, OR (C) ONLY WHERE APPLICABLE ACCORDING TO SECTION 15, AMOUNTS OWED PURSUANT TO THE GUARANTEE PROGRAM.
THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF CUSTOMMADE IS ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES, AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL CUSTOMMADE BE LIABLE TO YOU, AND YOU WAIVE ANY RIGHT TO SEEK FROM CUSTOMMADE, CONSEQUENTIAL OR SPECIAL DAMAGES.
Buyer agrees to indemnify and hold CustomMade and CustomMade’s parents, subsidiaries, affiliates, officers, directors, consultants, suppliers, contractors, agents and employees harmless from any loss, expense, and damage, including but not limited to reasonable attorneys’ fees, arising out of or relating in any way to any claim or demand made, asserted, or threatened by any other person or entity and that arises out of or relates to Buyer’s conduct or failure to act, Buyer’s use of CustomMade’s services, or Buyer’s use of the Site, including but not limited to claims or demands relating to Buyer’s breach of this Agreement, failure to pay for a Project in accordance with a Project Agreement, violation or alleged violation of others’ intellectual property rights, violation or alleged violation of any other rights of another, and violation or alleged violation of any law or regulation.
CustomMade may, in its sole discretion, remove, cease operating, change the functionality of, or otherwise modify its services and the Site at any time.
CustomMade does not guarantee continuous, uninterrupted, ongoing access to the Site or any of the Site’s features, and operation of the Site may be interfered with or eliminated entirely by numerous factors outside CustomMade’s control or at CustomMade’s sole discretion.
Buyer agrees to comply with all applicable domestic and international laws when using and in relation to CustomMade’s Service or the Site.
Buyer understands and agrees that Buyer and CustomMade are independent entities, and that no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement, or by the operation of the CustomMade Service or the Site.
Buyer further understands and agrees that CustomMade is independent from all other Users, and that no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created between CustomMade and any other User by virtue of any other User’s agreements with CustomMade, or by the operation of the CustomMade Service or the Site.
This Agreement shall be interpreted and governed by the internal laws of the Commonwealth of Massachusetts, without regard to conflict of laws principles.
ALL DISPUTES CONCERNING OR ARISING OUT OF THIS AGREEMENT, INCLUDING WHETHER A DISPUTE IS SUBJECT TO ARBITRATION, SHALL BE RESOLVED BY BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR AND ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), USING THE THEN-CURRENT APPLICABLE AAA RULES. THE LOCATION OF THE ARBITRATION SHALL BE THE AAA OFFICE IN BOSTON, MASSACHUSETTS, OR ANOTHER LOCATION IN BOSTON, MASSACHUSETTS CHOSEN BY THE AAA OR THE ARBITRATOR.
THE FEDERAL ARBITRATION ACT, AS IN EFFECT AT THE TIME OF ANY ARBITRATION DEMAND, SHALL APPLY TO ANY ARBITRATION PURSUANT TO THIS AGREEMENT.
THE PARTIES SHALL EACH BEAR THEIR OWN EXPENSES RELATED TO ANY ARBITRATION. THE COSTS OF THE ARBITRATION TRIBUNAL, INCLUDING THE ARBITRATOR’S AND THE AAA’S FEES, SHALL BE SHARED EQUALLY BETWEEN THE PARTIES, REGARDLESS OF WHICH PARTY PREVAILS. EACH PARTY TO THE ARBITRATION SHALL BEAR ITS OWN LEGAL FEES, REGARDLESS OF WHICH PARTY PREVAILS. THE ARBITRATOR SHALL NOT AWARD ANY MULTIPLE OR PUNITIVE DAMAGES, REGARDLESS OF WHICH PARTY PREVAILS. NOTWITHSTANDING ANYTHING TO THE CONTRARY PERMITTED BY THE APPLICABLE RULES OF THE AAA, ANY ARBITRATION PURSUANT TO THIS AGREEMENT SHALL INVOLVE BUYER AND CUSTOMMADE ONLY IN THEIR INDIVIDUAL CAPACITIES, SHALL NOT BE CONSOLIDATED WITH ANY OTHER ARBITRATIONS, AND SHALL NOT BE ARBITRATED AS A CLASS OR OTHER FORM OF REPRESENTATIVE ACTION. BUYER AGREES NOT TO PARTICIPATE IN ANY ARBITRATION RELATED TO OR ARISING FROM THIS AGREEMENT AS A CLAIMANT OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.
ANY ACTION TO CONFIRM AN ARBITRATION AWARD PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION WITHIN SUFFOLK COUNTY, MASSACHUSETTS. CUSTOMMADE AND BUYER AGREE TO SUBMIT TO THE JURISDICTION OF ANY SUCH COURT, WAIVING ANY OBJECTION BASED ON PERSONAL JURISDICTION OR VENUE.
AT LEAST FORTY-FIVE (45) DAYS PRIOR TO EITHER PARTY INITIATING ANY ARBITRATION PURSUANT TO THIS AGREEMENT, THAT PARTY SHALL SEND TO THE OTHER PARTY A WRITTEN DEMAND DESCRIBING THE NATURE OF THE DISPUTE AND SETTING FORTH A PROPOSED RESOLUTION. THE PARTIES SHALL THEN ATTEMPT TO NEGOTIATE IN GOOD FAITH TO RESOLVE THE DISPUTE.
You understand and agree that CustomMade disclaims all responsibility and liability for, and you shall not seek to hold CustomMade liable for, the quality, content, nature, or reliability of other sites accessible by hyperlink from the Site, of sites linking to the Site, or of sites framing the Site (together, “Linked Sites”). Linked Sites are not under the control of CustomMade, and CustomMade shall have no responsibility for the content of any Linked Site or any link contained in a Linked Site. The inclusion of any link on the Site does not imply any affiliation, endorsement, or adoption by CustomMade of a Linked Site or any information contained therein.
When leaving the Site for another site, you should be aware that this Agreement may not govern your use of the other site, and therefore you should review the applicable terms and policies, including privacy and data-gathering practices, of that other site.
Buyer consents to receive communications from CustomMade electronically, by email, posting on the Site, or messages to Buyer through the Site. Buyer agrees that all notices, communications, deliveries, or process shall be deemed delivered to and served on Buyer upon emailing, posting, or sending through the Site, regardless of whether such notices, communications, deliveries, or process actually reach or are read by Buyer. Buyer waives any formal service or hard-copy delivery rights with respect to any communication, notices, deliveries or process arising out of or relating to the CustomMade Service or the Site.
The Site is not directed at or intended for use by any person located in any jurisdiction where the Site’s content or functionality is illegal or permitted only with necessary licenses or authorizations that CustomMade has not obtained. You agree not to access or use the site in any such location and that you are responsible for determining whether use of the Site is permitted in your location.
CustomMade may modify the Agreement at any time, in its sole discretion, by posting an amended Agreement on the Site. Unless otherwise indicated on the Site, any modifications shall be effective immediately. You agree that any such modifications shall be effective and that your continued use of the Site or the CustomMade Services after any modification will be governed by this Agreement as modified. CustomMade may, but in no event shall it be required to, provide you notice of any modification by email or other form of communication. Except modifications that CustomMade makes pursuant to this Section, or as otherwise agreed between you and CustomMade in a writing signed by both you and CustomMade, no other modifications to this Agreement shall be permitted. CustomMade may terminate the Agreement at any time, in its sole discretion, by providing you notice of termination or by ceasing to operate the Site.
In the event that this Agreement is terminated, the following Sections shall survive any such termination and remain in effect: 5 (Limited License and Restrictions on Use), 6 (General Maker Performance), 7 (Communications with Users), 9 (Disintermediation), 10 (Payments), 12 (Failure to Pay), 14 (Feedback and Reputation Management), 15.4.5 (Subrogation), 16 (Release), 17 (Maker Conduct and Content), 18 (License to CustomMade), 19 (Warranty Disclaimer), 20 (Limitation of Liability), 21 (Indemnity), 23 (Legal Compliance), 24 (No Agency), 26 (Arbitration Agreement), 28 (Electronic Communications).
If any provision of this Agreement is held to be unenforceable, such provision shall be struck and the remaining provisions shall remain enforceable.
CustomMade may assign this Agreement in its sole discretion. Buyer may not assign this Agreement or any of Buyer’s rights or obligations, without CustomMade’s prior written consent.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim.
If you believe that your work has been copied and posted on our Site in a way that constitutes copyright infringement, please provide us with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on our Site; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. CustomMade’s copyright agent to whom you should provide such information is as follows: CustomMade Ventures Corporation, Attention: Seth Rosen, 99 First Street, Cambridge, MA 02141. You may also provide this information electronically at this link.